Ontario Women’s Justice Network

Applying for Child Custody

Having custody means having the legal right and responsibility to make all the important decisions about a child’s life, including the child’s school, religion, medical decisions, etc. There are two different ways to apply for the custody of your child.

If you are applying for custody at the same time that you are applying for a divorce, then you will make your custody application under the Divorce Act. Under the Divorce Act, either parent or both parents may apply for custody.

If you are not getting divorced or you were never married (but you are separating from your partner) you will make your custody application under the Children’s Law Reform Act. Under the Children’s Law Reform Act, either one or both parents, or a third party, may apply for custody.

What is custody or access?

What should I tell the court?

Whether you apply for custody under the Divorce Act or the Children’s Law Reform Act, the court will make a custody decision based on the best interests of the child. It is important to tell the court:

about the current pattern of care that you give the child, especially if you are the main caregiver of the child.

if you have a stable home life and are not planning to change or disrupt the home life in any way.

your plan for the child’s future – how you will care for and raise the child.

if there is violence in your relationship, tell the court how the violence affects your child. It is helpful to bring evidence such as police or hospital reports, or the testimony of counselors, friends, or family.

Some other things the court will consider include:

the love, affection and emotional ties between the child and each person claiming custody or access; ties to other family members living with the child; or persons involved in their care

the child’s views and preferences;

ability of each person applying for custody of or access to the child to act as a parent and provide for the child’s needs;

whether or not a parent has ever been involved in a child protection case or a criminal case.

How do I apply for custody under the Divorce Act?

If you are applying for a divorce, it will be easiest to sort out custody at the same time. Your lawyer will include an application for custody in your application for a divorce. This will save you time and money. The application for custody will include information about why you are seeking custody and why it is in the best interests of the child to be in your custody.

The Divorce Act says the court must consider the best interests of the child. It may be helpful to include information about your home life, your plans for the future, your ability to care for and provide for the child’s needs, and your plans for the child’s future. It is important to include information about your plans for allowing access to the other parent.

The court will not look at the past conduct of a parent, unless the past behaviour will make the parent less able to act as a good parent.

The custody application will be dealt with at the same time as the other divorce issues. It may be dealt with at trial or during negotiations. Since you cannot apply for a divorce until one year of separation has passed, you must make an interim custody arrangement for this time period.

If you and your ex-partner can agree on an arrangement, the court will likely accept that arrangement. If you cannot agree, you may have to mediate an agreement. If you mediate, bring a lawyer and do not allow your ex-partner to intimidate you. Avoid mediation if your ex-partner is abusive, or if you feel afraid or unsafe disagreeing with your ex-partner.

If mediation fails, your lawyer will bring an application for interim custody in court. It is important to note that the court rarely changes such an interim custody decision later on.

How do I apply for custody under the Children’s Law Reform Act?

There are some advantages to applying for custody under the Children’s Law Reform Act:

The process is less formal and less costly.

The application can be made without a legal divorce. In other words, the application can be made if you are separated but do not plan to divorce, or if you were never married in the first place.

The application can also be made in the interim period before a divorce is final.

In general, the same procedures for applying for custody are used under the Children’s Law Reform Act as used under the Divorce Act. You and your lawyer will make an application for custody that outlines why it is in the best interests of the child to be in your care. The Children’s Law Reform Act outlines factors that the court will consider:

the love, affection and emotional ties between the child, the parents, other family members and caregivers

the child’s wishes (the older the child, the more the child’s preferences will be considered)

the stability of the home that each parent can provide for the child

how the parents plan to care for and raise the child

the ability of each parent to provide for the child’s needs

whether or not a parent has ever been involved in a child protection case or a criminal case

The court will not consider past behaviour, such as who is to blame for the separation, unless it directly involved the child and the parent’s ability to act as a good parent. But the judge must take into account if a parent was ever violent or abusive towards you, anyone in the household, or their own or any other child.

What if I leave and take my child with me?

Because you and the child’s other parent have an equal right to custody over the child, you do not have a right to take your child and not tell the other parent. The other parent has a right to know where the child is and to see the child. If there is a court order about custody and access, check with a family law lawyer about whether you can take the child or not. If there is no custody order, you should get legal advice as soon as possible after you leave with the child.

If it is safe, leave a note for the other parent that says you have left with the child, that she/he is okay, and that you will contact him in the near future to allow access to the child (keep a copy of the note for proof).

If it is not safe, you can leave a message for the other parent once you are in a safe place. Be careful to make sure he cannot trace where you are. You may be able to tell the court that taking the child was in the child’s best interest, but you should get legal advice right away.

What if I leave and leave my child behind?

If you need to flee for your safety, or if you leave your child behind for some other reason, you should keep in frequent contact with the child and begin custody proceedings as soon as possible.

If it is unsafe to contact your ex-partner, speak to a lawyer about getting access to the child. Always think about your own safety.

Does violence affect custody and access?

Violence will affect custody and access if it affects the best interests of the child. The court will only consider past behaviour, if it makes the person less able to act as a good parent. But, if a person who wants custody or access has ever been violent or abusive towards:

their spouse;

anyone in their household,

a parent of the child, or

any child,

the judge must take this behaviour into account.

If possible, the court wants the child to stay in contact with both parents. If your ex-partner is abusive, and you are concerned about your child’s safety, you can ask for supervised access visits. If it is not safe for you to be in contact with the other parent, you can also ask for supervised access exchanges.

For more questions and answers, visit Common Custody and Access Issues.

Definitions

Sole Custody:

Sole custody means you have the legal right and responsibility to make major decisions by yourself about your child’s life, such as things like your child’s health, education and religious teaching. A parent with sole custody will almost always have to give the non-custodial parent access to the child.

Joint Custody:

Joint custody means you and the child’s other parent must make major decisions about the child’s life together.

Joint custody does not necessarily mean that the child spends an equal amount of time with both parents. Joint custody needs a lot of co-operation and works best when the parents share the same ideas about how to bring up their child.

Joint custody may be unsafe for you if your ex-partner is abusive and you cannot come into contact with him. It is important to tell your lawyer if your ex-partner is abusive.

Shared Custody or Parenting

Shared custody or shared parenting does not necessarily mean the parents have joint custody. It is a term used for deciding child support and means that the child spends the same amount of time with each parent. Even if one parent has sole custody, if the child spends at least 40% of her time with the other parent, it is called shared custody.

Access:

If one parent gets custody of the child, the other parent will usually get access. Access means the parent has the right to visit and spend time with the child, and to know about the child’s health, well-being and education. Even a parent who has not spent much time with his or her child can usually get access. Access can be frequent or infrequent, regular or irregular. It may be strictly scheduled or worked out by the parents on an ongoing basis.

Primary Residence:

The primary residence is where the child spends the majority of her or his time. Courts usually say where the child’s residence will be. Even if parents have joint custody, the child will usually have a primary residence.

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Information on OWJN is not legal advice

OWJN contains general legal information only. OWJN does not give legal advice. If you need legal advice, you should contact a lawyer, who can help you make decisions about your legal rights. You may be eligible for legal advice from a community Legal Aid clinic.